Justice David Gaultney Retires; Civil Defense/ Business Attorney Leanne Johnson Appointed to Replace Him

Practically all bloggers report as their second job. This is certainly true for me, practicing appellate law and criminal defense from an office in The Woodlands. It sucks that when my practice and my personal business are busy (My wife and I are in the process of moving to a new house.), and for the last two workdays I have had less than 15 minutes to sit at a desk at a computer.
Anyway, Justice David Gaultney has retired. Governor Rick Perry has appointed civil defense attorney Leanne Johnson to replace Gaultney. She's a Beaumont attorney from the extremely plugged-in firm of Orgain Bell and Tucker. She will be the first female justice on the court. A 1983 magna cum laude Bachelor of Science in political science from Southern Arkansas University in Magnolia, a high honors graduate from University of Arkansas School of Law in 1986 where she on Moot Court Board and Law Review. She was a law clerk for Eastern District of Louisiana Judge Nauman Scott. Her background is largely in or connected to the petroleum industry, disputes relating to rights of way or easements, pipeline regulatory and personal property disputes, eminent domain, reinsurance and excess insurance coverage disputes, commercial contracts and litigation, class actions, personal injury defense work , employment law employer defense and ERISA defense. She's Board Certified in Personal Injury Trial Law, and is licensed to practice law in both Texas and Arkansas. She is admitted to practice law before the United States District Courts for the Eastern and Southern Districts of Texas, and the United States Court of Appeals for the Fifth Circuit. She has been certified as a mediator and has a strong record of bar service and service to the Beaumont community.
Governor Perry chose her over former state district judge Fred Edwards and my friends Steve Simonsen and Scott Golemon. Simonsen and Golemon were long shots, but this development must be a bitter disappointment for Judge Edwards.

I think the justice's photo is relevatory: resolute, extremely practical, energetic, and very bright (Look at those eyes!). I would be surprised to find that she loves the bookish trappings of the law as much as Justice Gaultney charmed us with, but like Justice Gaultney back in the day, she comes to the bench without a lengthy judicial record.

It appears that the court will be tougher; I have some hope that it will be as smart.

A $505 Filing Fee for a Notice of Appeal in Federal District Court!

$505 is the filing fee for a notice of appeal in federal district court effective December 1, 2013. That seems very high to me.

Landlords Need Lawyers to Defend Eviction Appeals

New Caney Oaks Apartments evicts Ms. Kelly McClane. Texas eviction suits are heard in justice-of-the-peace courts. They are rare exceptions to the rule that corporations and such like must be represented in courts by lawyers. A landlord organized as a corporation or a limited liability company, etc. may just send an employee or other agent to JP court for an eviction, rather than hiring a lawyer.

The tenant loses by default, then appeals to a Montgomery County Court at Law. After a first setting in front of a visiting judge, the appellate case is reset to the next day. That day, the property manager appears, but neither the tenant nor any counsel for her. The appeal is dismissed because no one was present for the tenant. The tenant said later that she had called the County Court at Law that she would not be able to be present at that latter setting and that someone there said that she would get a notice of the date that the appeal was yet set again to. The tenant got a notice of yet another appearance date, about a month off. On that third setting, the property manager was there, but not McClane nor any lawyer for her. The judge defaulted the appeal in favor of the landlord.

McClane said that she was late because she couldn't find a parking space in or near Montgomery County's courthouse square and just drove around and around as the time ticked away (The courthouse public parking lots are the Baptist Church parking lot to the north northeast, the county parking garage to the west, and lots one and two blocks to the south. In and next to courthouse square are meticulously policed metered spaces.). With the aid of counsel, she files a motion for new trial, an amended motion, and, apparently, a second one-- the second with exhibits and an affidavit.  The county court at law overruled it and made a finding that the visiting judge at the first appellate proceeding did not have an order of appointment for that court, that that judge dismissed the appeal, and that a motion for new trial had been granted between the first and second appellate proceedings because of the lack of a judge's appointment in the first proceeding. As to the second one, the county court at law judge ruled that that the appellant had legitimately defaulted.

McClane appealed to the Court of Appeals at Beaumont. Justice David Gaultney, writing for a panel including Justices Charles Kreger and Hollis Horton, held that the eviction wasn't moot because McClane had put the adequacy of the notice to vacate in issue in her case and the lease had a holdover provision and she had not vacated the apartment. They held that the last county-court-at-law judgment was the final judgment in the case (which affects-- among other things-- court-of-appeals deadlines), because it was the first signed judgment. A first judgment was orally pronounced from the bench, but was never entered in writing. Lastly, they held that none of the exceptions that would allow New Caney Oaks to be represented by a non-lawyer in the county court at law would apply, and, therefore, the case had to be reversed and remanded.

Courts of appeals hate default judgments.

It is also good to find out what my old friend Richard Tomlinson-- a stalwart civil advocate for the poor-- is doing these days; he's apparently a senior counsel for Lone Star Legal Aid in Houston.

McClane v. New Caney Oaks Apartments, ___ S.W.3d ___, No. 09–13–00284 CV (October 31, 2013, Tex. App.--Beaumont,, no pet. h.)

Whither Warrantless Blood Alcohol Testing after McNeely? Contrasting Views from Houston's 14th

Facts: Douds, apparently intoxicated, drives his wife from a party and hits another car occupied by other people leaving the party. Douds's wife complains of  chest and rib pain and that she cannot move her right arm. She refuses to transportation to the hospital by the EMTs, instead leaving the scene with the driver of the car hit by her husband. A police officer-- Tran-- arrests Douds and seeks a breath test from him. Douds refuses, and Tran takes him to a local medical center for a mandatory-- that is, warrantless-- blood draw. Douds moves to suppress admission of the blood specimen against him and also seeks to have the warrantless specimen law declared unconstitutional. Tran testifies that he required the blood draw based on the totality of the circumstances, because the wife was injured and would need medical attention. On cross-examination, Tran admits that Douds's wife did not promise to go to a hospital, but Tran maintained that he thought that the lady would seek medical care that night.
The trial judge refused the motion to suppress. Douds pleaded guilty to a reduced charge, but appealed the denial of the suppression and the overruling of the constitutional challenge. Justice William J. Boyce, writing for himself and Justice Martha Hill Jamison, held that the trial judge had found that Tran's testimony credible, and that that was the basis of the denial of the motion to suppress.  Because the trial judge had been able to assess Tran in person while the only thing the justices had was a cold record, the justices were loath to second-guess the trial court, and so affirmed on that issue.
As to the constitutional challenge, Schmerber v. California, 384 U.S. 757 (1966) upheld a warrantless blood draw in an intoxicated driving case against a self-incrimination objection and Missouri v. McNeely, ___ U.S. ___, No. 11–1425 (Apr. 17, 2013) sustained suppression of a warrantless blood draw alleged justified because the dissipation of alcohol from the blood took place so quickly that taking the time to get a warrant was never necessary. The majority of the panel held that Douds's was a different case. Texas's law did not, as the objectionable law in Missouri did, just allow all drunk-driving blood draws. Instead, it set up specific, limited circumstances  under which such blood draws will be allowed. Douds, they argued, had not shown why those circumstances did not constitute exigencies that would excuse the lack of  a warrant, and so upheld the law.
Justice J. Brett Busby dissented; a warrant is required for a blood draw anytime, he said, that there was no exigency or emergency making a warrant impractical or impossible, which is what is required to satisfy McNeely.
Busby's view does seem to me to be consistent with the principle that for a search, a warrant is presumed necessary unless there is a legally recognized excuse. As communication technologies improve, there are fewer and fewer excuses for not getting a warrant. Hence the no-refusal weekends of my home Montgomery County Texas.
Kenneth Lee Douds v. State of Texas, ___ S.W.3d ___, No. 14-12-00642-CR (Tex. App.-- Houston [14th Dist.] Oct. 15, 2013, no pet. h.)